Alex Hunt:
Welcome back to the Texas Family Lawyer Podcast. I'm Alex Hunt, the managing attorney and founder at Hunt Law Firm, and today I'm happy to be joined by Bri Holcombe. Welcome.
Bri Holcombe:
Thank you for having me.
Alex Hunt:
Bri is an associate attorney at Hunt Law Firm and also our director of talent development. So today we're going to be following up in a podcast that we did a few months ago that was about the contested divorce process and the different steps in Texas contested divorce by talking about what it's like when there is an uncontested divorce. And like the contested divorce process on our website there's a flow chart. It says steps in an uncontested divorce that you can go to at familylawyerkaty.com and it lists out some key terms that you need to know as well as gives you a flow chart of the entire process. What we're going to be doing in this podcast is just going through and adding some detail to that. But before we do that, I think we should talk a little bit about what an uncontested divorce is and what it is not.
Bri Holcombe:
That's a good one.
Alex Hunt:
Tell me a little bit about what an uncontested divorce is.
Bri Holcombe:
An uncontested divorce is a divorce where there are no issues. Meaning the clients are not fighting about property, they're not fighting about children. They come to us and the agreement is already done and solidified. Oftentimes clients feel that they may have an uncontested divorce, but there could be one or two issues. That tips it over the line and follows that contested flow and it mirrors some of those things that we talk about where it maybe not be a full contested divorce. But a true uncontested is there are no issues and we're just here to basically do the paperwork for the client.
Alex Hunt:
Very good. And so if somebody comes into our office, they'll start with an initial consultation and if you're watching this or you're listening to this, you can go back and look at last month's. If you're curious about how to find the right divorce lawyer, I had a great conversation with our senior associate attorney, David Adams out of our League City office, but you'd usually start with an initial consultation and that's where the lawyer and the prospective client get to know each other. The prospective client tells a little bit about the case, gives some of the facts. The lawyer will give some information about what it looks like to retain the firm and then after that initial meeting, the client will retain, will pay an initial retainer, we'll sign a contract, and then they're ready to get started.
The first part in the uncontested divorce process would be filing the original petition for divorce. And an original petition very simply is starts a process and lays out what it is that that person is looking for out of this divorce. So it lays out some jurisdictional requirements. It gives the official names of the parties, it says where they live. It says if somebody needs to get served or not. It'll give the name of the child or their children if they have it. And then typically in an uncontested divorce, instead of saying what should happen with their property, it will say that the parties both expect that they're going to reach an agreement. And if that changes in the future, that petition can always be changed, but you start with an understanding that there is going to be an agreement and that this is going to be something that there's no dispute about any of the terms.
Bri Holcombe:
And the same goes for children too. We say we can reach an agreement. What I call it is our vanilla petition. It's just a basic outline. A basic form that says we're going to reach an agreement on all issues and like you said, we're free to amend and spice it up later on if we need to.
Alex Hunt:
Absolutely. And so once you have your original petition that gets filed with the court, the court will assign a court and a cause number. If you're in Harris County in Houston, Texas, there's 10 different family courts that your divorce can land in. And so the court uses the lottery, they determine who the judge is going to be for your case and they issue you a number called a cause number. And all future pleadings will need to use that number and everything is going to be directed to the court that you land in. The next part of the process from there is getting service on the other party. And so we're used to from television, there's going to be a process server. There's going to be somebody that hands them paperwork and said, "You've been served," but there's another way in an uncontested divorce.
Bri Holcombe:
In an uncontested divorce, we typically don't want that process server to go maybe make a scene or make it be embarrassing to one of the parties. So we use what's called a waiver of service. Essentially what that is it's a document that a spouse will sign acknowledging that they received the paperwork, they've got a copy of the original petition for divorce, and they're choosing not to have that process server knock on the door and say you've been served. They have to take that document and have it notarized, and then we typically would file that on their behalf into the court's record to show that they have made an appearance. That way the court acknowledges that they are in the case, they are present, they are an active party, and the case is going to continue to move through the flow, if you will, with notice to that party of all the proceedings and things that take place.
Oftentimes what we do is send a letter to the spouse of a client and we say, "Hey, this is a waiver of service. Here's what it does. You're entering your appearance into this case, but if you don't do it by a certain date, we then are going to proceed with having you served." And the reason that we do that is because the case has to have service in order for it to kick off. Without that very first piece of that flow in the service portion, we cannot continue with a divorce process. So we always want to ensure that service has been effectuated either by a waiver of service or actual service on an individual.
Alex Hunt:
And sometimes it's unavoidable in a contested divorce to get the other side served. It's certainly never pleasant getting served. It's always comes as a surprise. Even if you know it's coming, you never know when it's going to be coming. And so there's that element that's taken out. But it's also a cost savings because a waiver of services usually two-page document that's fairly routine that we can draft up pretty cost-efficiently, and then the client is the one that can take it to their spouse and can ask them to sign it and then they'll bring it back to the attorney. We could do it too, but if you're really looking to keep costs slow, that's an option that would lower it significantly. So we filed the pleadings, the respondent has waived service, filed a waiver of service, now we need to have what the actual agreement is. Take us from receiving the agreement to getting it confirmed in a mediation.
Bri Holcombe:
Absolutely. So oftentimes in a consultation we'll have some sort of idea of what the agreement is. What I typically like to do is prepare an offer letter. An offer letter is essentially a detailed letter that walks through all of the terms of the agreement. So there are things like conservatorship, possession and access, child support, health insurance, and property division contained in this offer letter. When the client provides me with their agreement, I'll always review their agreement to ensure that every single element of the Texas Family Code is met. We don't want to leave something out. There often may be things that the client's not thinking about that we deal with on a daily basis that I can let the client know. For example, you don't have anything related to passports in this agreement. Would you like to add something related to that so that we can hedge international travel in the future?
Once I have prepared that offer letter, I send it to the client for review. They'll review the offer letter, make sure that it's good, it contains everything that they want. Then what we do is we'll send that offer letter over to the spouse. The spouse can do the same thing, review, ensure that everything is met. If there's any revisions or changes that I may have missed, they can certainly let us know. When they approve of the offer letter or we've reached an agreement on what that looks like what happens is we typically will go to a drive-by mediation. So mediation is a process where we can use the Texas Family Code's provisions for mediation in order to lock in a binding irrevocable settlement agreement. And what happens is when we sign an MSA, a mediated settlement agreement, the terms that we agree to are locked in. They are final.
And what happens is the court can't go through and change those agreements because two spouses have come together and said, "This is what we believe our agreement should be and we want to lock it in." So it's a really quick process. What we do is we send the offer letter to the mediator so they can type it up in their form. We hop on a zoom, it's usually 15 to 20 minutes long where we review it once more in great detail. The mediator who again is a third party that doesn't represent either party in the suit, reviews it and ensures that this is really what everyone wants to sign to. Then we'll send it around for digital signature and that agreement is locked in. We're entitled to judgment on it, which means that nobody can change their mind in the future. If one party decides that they don't like it anymore the spouse that continues to like it can still proceed with the divorce with those terms.
Alex Hunt:
And I know after relief here today, you have a drive-by mediation and a drive-by mediation is something that is not a hundred percent necessary, but it gives most of our clients' peace of mind that the other side isn't going to back out. And I can't tell you how many times we've had folks that have come to us and have said, "Nobody's backing out of this. We both know what we want." And then something happens, there's a disagreement or somebody talks to somebody else and we're backing out of the agreement. And once one piece of the agreement starts to fall apart, it seems like things start to unravel and the whole thing can fall apart.
So when you have a binding mediated settlement agreement, it means no take backs. You're locked in and it actually helps provide some cost savings because once you have it locked in, you know that your lawyer, when they go to the next step when they're drafting up the agreement is going to be drafting up something that they know is going to then be provided to the court. Whereas if you don't have a binding settlement agreement, if you're not locked in, it's possible that you would tell your lawyer, here's the agreement, draft up the final decree of divorce, you give it to the other side and then they say, "I didn't agree to any of this," or, "I don't agree to this anymore." And then you've just had your lawyer spend three or four hours drafting up a final decree, but it's not something you're actually going to use and it's just wasted money or you have to go back and do a whole bunch of revisions.
Bri Holcombe:
Or you go to the contested flow of a divorce and you're starting over almost.
Alex Hunt:
Exactly. So although there is some initial cost with the mediated settlement agreement, it is actually I think a cost savings and it gives you just peace of mind to know that it's locked in. So I mentioned that the next piece of this is the drafting, and that just means we're writing up the final decree of divorce, which is also known as the final order, and there's other ancillary documents that come with it. The final decree of divorce is just the document that formally ends the marriage, and if you have kids, it's going to include all of the provisions about conservatorship or custody, possession and access for your kids, child support, who has the kids and when, who's picking up the kids and where, who's dropping them off, who's paying unreimbursed medical expenses, who's providing health insurance. All of that is going to be put into painstaking detail in the final decree of divorce.
The second component of your is the property revisions. And in there it's going to have who is getting what stuff and who is taking on what debts. There might be other provisions that deal with things like who's paying the taxes or are we going to be selling a house and how is that going to be laid out? But everything regarding your kids and your property is going to be laid out in a document that will then be circulated among the parties so they can review it, they can make revisions to the language if they have any, and then they will eventually sign off and say, "This is what we agree to. I'm ready for this to go over to the court."
And one important key is that if you have a binding mediated settlement agreement and then you get you're circulating the final decree of divorce, the final order, and you say, "I don't like this provision," well, the only way that you're going to get that provision out of the final decree is if it wasn't in the mediated settlement agreement. Because if it's in the mediated settlement agreement, it's going in the final decree. There's some other ancillary documents. There are child support documents, real property documents. Tell me a little bit about the child support and real property documents.
Bri Holcombe:
So the child support documents, it really just depends on if the parties have decided that a party is paying child support. If they are typically, what we're going to file is called an income withholding order, which is essentially a document that is used to withhold funds from an obligor. That's what we call someone paying child support. From their paycheck. So this document gets signed by the judge, it gets sent then to an obligor's employer and it says, here's how much money we should be withholding from this person's paycheck so that child support can be received. There's another document that accompanies it called a record of support, which essentially is a document that the child support office uses in order to determine who's paying child support, what amount and did withholding get issued.
There's also a Bureau of Vital Statistics form. We call that a BVS form. Essentially what this form does is it just lists the names of the people who are getting divorced, their birthdays, their race, their date of marriage, their children's information, so that Harris County or Fort Bend County has some information about who people are for public record. And with the property documents, there could be a couple of different documents we use. If there is a home that one spouse is keeping, we would do what's called a deed of trust and a special warranty deed. Essentially what those documents are, a special warranty deed says, "I give my interest in a home to my spouse." And what happens is then that spouse who's receiving the home takes 100% ownership. A deed of trust is also executed by the spouse retaining the home saying, "I promise to continue making these mortgage payments." We could also have what's called QDRO. A qualified domestic relations order. This is a document that is used to split retirement accounts with no penalty or taxes to spouses during a divorce.
So essentially what happens is this is another document the judge will sign. It then gets sent to the plan administrator, which is the entity that holds the retirement accounts like a Fidelity or a 401k employer sponsored plan. The plan administrator then will receive that QDRO, make the division of the retirement accounts again with no taxes or penalties associated with splitting and dividing that account. There's also a power of attorney, which is a document used to remove one spouse's name from the title of a vehicle. That's a great one to use. And even if you don't know ... I'm not sure if my spouse's name is on a vehicle or not. It's a good idea just to get one so that you have it in the event that you find the title and it does have your spouse on it. Once the divorce is finalized we don't want spouses to continue to have to speak with each other if the marriage ended on bad terms.
Alex Hunt:
Absolutely. So you've got the final decree of divorce. You've got child support paperwork, you might have real property paperwork if you have a house together or houses, and you'll have potentially retirement documents. And then finally a document for either your vehicle or both of your vehicles to make sure that your names are off of the titles. So once you, as the lawyer drafts those documents up, you then send it over to your client, they review it together, you and the client will review it together. They'll make any revisions, they'll ask any questions. Where do you go from there?
Bri Holcombe:
So what I like to do is have a phone call with the client to go through the divorce decree. It's not going to be a four or five page document like the mediated settlement agreement will be. If you have children, your divorce decree is going to be 50 plus pages long. So I like to set a time aside, an hour, hour and a half to review in great detail that final decree. I want my client to know every single piece of their divorce decree so that if they have problems in the future, they know where they could even direct those questions to and find the answer to those questions. There's a lot of boilerplate and legalese contained in it, and I like to try and break that down for the client.
Once we review and they feel confident in signing the final decree and any of the ancillary documents, we send it over to their spouse, ask for signature as well. Once we get that back, then we can sign everything or I can place my signature on it and we can then file it with the court. When we file it with the court, we will either set it for a signing box submission just depending on where we flow, or we'll email the court directly and ask them to sign the final decree based off the mediated settlement agreement.
When we do that, there oftentimes is one more piece that has to happen, which is called prove up. Essentially what a prove up is the jurisdiction requirements that are presented to the court in order for the judge to sign off on the divorce. It says if we do it by an affidavit, which is a written statement where I live, who my children are, what the date of my marriage was, the date of my separation, that I reached a mediated settlement agreement, and I'm asking the court to approve my agreement and grant me a divorce. We oftentimes will do that by an affidavit, meaning that the client signs what I have written out for them, those requirements, and then we submit that to the court. Some courts though, require that be in person. So it's a quick five-minute question and answer where I say, "You reside in Harris County. You were married to your spouse on December 14th, 2024." All of those, once they're met, then the judge is entitled to render, meaning they can sign the final decree as long as it is in conformance with the mediated settlement agreement.
Alex Hunt:
And we're recording this in 2025 and before 2020, it used to be that there was really no way for a client could get out of going to court. You had to go to court, you had to have that five-minute interaction with the judge. You had to say that you met the jurisdictional requirements and that you truly did want the divorce. And the judge will ask do you have any children that you're expecting or that you've adopted? They want to make sure that everybody's captured in the divorce. There was no way to avoid going downtown to the courthouse or wherever your court is.
Bri Holcombe:
And then COVID.
Alex Hunt:
And then that happened, and now there is the ability to just sign that affidavit in most courts. And as of 2025, I would say most of the courts still allow that. Your lawyer will draft up, prove it up affidavit, you'll sign off on it, it'll be submitted to the court, and then the judge should review it and sign off on it.
Some courts are moving back to what we did pre 2020 where they require you to go in person to prove it up. But now there's a third option where some are allowing either by Zoom or WebEx video conference, they're allowing you to do the prove-up in person interacting with the judge, but you're just doing it by video conference. So I think things change in 2020 and we're seeing things ebb and flow. I think we might see more of a push to some of the courts saying you either have to come in person or you have to do it on Zoom, but moving away from those affidavits. But as of right now, most of the courts are allowing the affidavit option, which is good because if you could stay out of court ... That's why you're doing this uncontested. It's good to try to stay out of court.
So the final piece of the puzzle would be the court would sign off on your final decree of divorce. You would receive a certified copy of it, and then there might be a few steps after you receive your document in the mail. And so if you have a retirement account, it might be getting that QDRO, that qualified domestic relations order. You might have to send that to your plan administrator and wait and make sure that they actually it properly. If you have motor vehicle, it has your spouse's name on it, you might have to make a trip down to the tax office or to the DMV to get a new clean copy of your title without your spouse's name on it. You might need to change your name. If you get divorced and you go back to your maiden name, your former name, then you might need to go to the driver's license office or the Social Security office, passport office and get your name changed. But in terms of getting the actual divorce signed, at this point in the process, once the judge signed, it's a done deal. And then your lawyer, certainly our office, would help guide you through those remaining steps. Did I miss any?
Bri Holcombe:
I was just going to say the quickest you can get divorced in Texas is 61 days. So if you're on this uncontested flow, we can always have these things teed up and ready to go. So on that 61st day, the court can pronounce you officially divorced. So Texas has a waiting period from the date that you filed the petition. So that very first step, 60 days must pass in order for the court to officially divorce you.
Alex Hunt:
Definitely. A cooling off period. And Texas actually has one of the shorter cooling off periods. They don't want you filing for a divorce and getting divorced on the same day.
Bri Holcombe:
Changing your mind.
Alex Hunt:
And then changing your mind later in the week. So Bri, did we miss anything else?
Bri Holcombe:
I don't think so.
Alex Hunt:
All right. Well, as always, thanks for joining me. And if you would like to see the visual representation of what we talked about, you can go to familylawyerkaty.com. On the top of the screen you'll see a button called resources, click on that and then you'll see steps in an uncontested divorce. We also have a number of other practice areas where you could see a flow chart in some of the key terms that you need to know from contested divorces, adoptions, name changes, and child custody cases. So again, Bri, thank you very much.
Bri Holcombe:
Thank you.
Alex Hunt:
If you'd like to see more information about our firm, Hunt Law Firm, you can go to familylawyerkaty.com or you can call us at (832) 315-5494. See you next time.